Posts Tagged ‘Bagram’

People arrested outside of Afghanistan and detained at Bagram should have the same rights as those held at Guantanamo. This misguided ruling leaves them with no legal remedy against indefinite and unlawful detention.

Andrea Prasow, senior counterterrorism counsel at Human Rights Watch

(Washington, DC) – A US federal appeals court ruling today that bars the courts from hearing the claims of detainees arrested outside of Afghanistan and brought to Bagram Air Base in Afghanistan leaves them without legal recourse against unlawful detention and other abuses, Human Rights Watch said today.

In April 2009, a federal district court ruled that three men held at Bagram who were arrested outside of Afghanistan had the right to challenge their detention in US federal court. Citing the Supreme Court’s historic 2008 ruling in Boumediene v. Bush, the court found that the three men were similarly situated to detainees at Guantanamo Bay. Today’s ruling, issued by the US Court of Appeals for the DC Circuit, reversed that decision, finding that because Afghanistan is “a theater of war,” detainees held at Bagram, regardless of where they were captured, have no constitutional right to challenge their detention in a US court.

“People arrested outside of Afghanistan and detained at Bagram should have the same rights as those held at Guantanamo,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “This misguided ruling leaves them with no legal remedy against indefinite and unlawful detention.”

The three detainees in question – two Yemenis and a Tunisian – all claim they were captured outside of Afghanistan, far from any battlefield. Human Rights Watch has interviewed close relatives of one of the Yemenis, Amin al-Bakri. Al-Bakri’s father told Human Rights Watch that he had to hire a private detective to learn that his son, a gem trader and father of three, was picked up in late 2002 during a business trip to Thailand. He said he did not receive a letter from his son for a full year after his arrest.

The ruling will likely be appealed to the Supreme Court, although the court need not accept the case. The Supreme Court has rejected the DC Circuit’s reasoning in numerous other detainee cases, including Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush, each time finding that the detainees had greater rights to judicial review than the DC Circuit had held.

In its ruling today, the court acknowledged that the review procedures available to the Bagram detainees “afford even less protection” than the procedures that were available at Guantanamo. Since Guantanamo detainees have been able to challenge their detention in court, the federal district courts have ordered the release of 35 detainees, while finding that the government was lawfully detaining only 13.

While holding that US courts do not have jurisdiction over Bagram, the appellate court rejected the government’s broader claim that all detainees held outside the United States and Guantanamo have no constitutional right of access to the courts.

Human Rights Watch expressed concern about the incentives created by the court’s ruling, noting that systematic and notorious detention abuses over the past decade have underscored the need for court scrutiny of detention of people apprehended outside of the United States.

“The appeals court holding means that people apprehended anywhere in the world can be whisked off to Bagram and hidden from court review,” Prasow said. “Just because the plane landed at Bagram instead of Guantanamo should not mean they can be held indefinitely without any court review.”

(Washington, DC, May 21, 2010) – A US federal appeals court ruling today that bars the courts from hearing the claims of detainees arrested outside of Afghanistan and brought to Bagram Air Base in Afghanistan leaves them without legal recourse against unlawful detention and other abuses, Human Rights Watch said today.

In April 2009, a federal district court ruled that three men held at Bagram who were arrested outside of Afghanistan had the right to challenge their detention in US federal court. Citing the Supreme Court’s historic 2008 ruling in Boumediene v. Bush, the court found that the three men were similarly situated to detainees at Guantanamo Bay. Today’s ruling, issued by the US Court of Appeals for the DC Circuit, reversed that decision, finding that because Afghanistan is “a theater of war,” detainees held at Bagram, regardless of where they were captured, have no constitutional right to challenge their detention in a US court.

“People arrested outside of Afghanistan and detained at Bagram should have the same rights as those held at Guantanamo,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “This misguided ruling leaves them with no legal remedy against indefinite and unlawful detention.”

The three detainees in question – two Yemenis and a Tunisian – all claim they were captured outside of Afghanistan, far from any battlefield. Human Rights Watch has interviewed close relatives of one of the Yemenis, Amin al-Bakri. Al-Bakri’s father told Human Rights Watch that he had to hire a private detective to learn that his son, a gem trader and father of three, was picked up in late 2002 during a business trip to Thailand. He said he did not receive a letter from his son for a full year after his arrest.

The ruling will likely be appealed to the Supreme Court, although the court need not accept the case. The Supreme Court has rejected the DC Circuit’s reasoning in numerous other detainee cases, including Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush, each time finding that the detainees had greater rights to judicial review than the DC Circuit had held.

In its ruling today, the court acknowledged that the review procedures available to the Bagram detainees “afford even less protection” than the procedures that were available at Guantanamo. Since Guantanamo detainees have been able to challenge their detention in court, the federal district courts have ordered the release of 35 detainees, while finding that the government was lawfully detaining only 13.

While holding that US courts do not have jurisdiction over Bagram, the appellate court rejected the government’s broader claim that all detainees held outside the United States and Guantanamo have no constitutional right of access to the courts.

Human Rights Watch expressed concern about the incentives created by the court’s ruling, noting that systematic and notorious detention abuses over the past decade have underscored the need for court scrutiny of detention of people apprehended outside of the United States.

“The appeals court holding means that people apprehended anywhere in the world can be whisked off to Bagram and hidden from court review,” Prasow said. “Just because the plane landed at Bagram instead of Guantanamo should not mean they can be held indefinitely without any court review.”

Many of us are still in a state of shock over the guilty verdict returned on Dr Aafia Siddiqui.

The response from the people of Pakistan was predictable and overwhelming and I salute their spontaneous actions.

From Peshawar to Islamabad, Karachi, Lahore and beyond they marched in their thousands demanding the return of Aafia.

Even some of the US media expressed discomfort over the verdict returned by the jurors … there was a general feeling that something was not right.

Everyone had something to say, everyone that is except the usually verbose US Ambassador Anne Patterson who has spent the last two years briefing against Dr Aafia and her supporters.

This is the same woman who claimed I was a fantasist when I gave a press conference with Tehreek e Insaf leader Imran Khan back in July 2008 revealing the plight of a female prisoner in Bagram called the Grey Lady.

She said I was talking nonsense and stated categorically that the prisoner I referred to as “650” did not exist.

By the end of the month she changed her story and said there had been a female prisoner but that she was most definitely not Dr Aafia Siddiqui.

By that time Aafia had been gunned down at virtually point blank range in an Afghan prison cell jammed full of more than a dozen US soldiers, FBI agents and Afghan police.

Her Excellency briefed the media that the prisoner had wrested an M4 gun from one soldier and fired off two rounds and had to be subdued. The fact these bullets failed to hit a single person in the cell and simply disappeared did not resonate with the diplomat.

In a letter dripping in untruths on August 16 2008 she decried the “erroneous and irresponsible media reports regarding the arrest of Ms Aafia Siddiqui”. She went on to say: “Unfortunately, there are some who have an interest in simply distorting the facts in an effort to manipulate and inflame public opinion. The truth is never served by sensationalism…”

When Jamaat Islami invited me on a national tour of Pakistan to address people about the continued abuse of Dr Aafia and the truth about her incarceration in Bagram, the US Ambassador continued to issue rebuttals.

She assured us all that Dr Aafia was being treated humanely had been given consular access as set out in international law … hmm. Well I have a challenge for Ms Patterson today. I challenge her to repeat every single word she said back then and swear it is the truth, the whole truth and nothing but the truth.

As Dr Aafia Siddiqui’s trial got underway, the US Ambassador and some of her stooges from the intelligence world laid on a lavish party at the US Embassy in Islamabad for some hand-picked journalists where I’ve no doubt in between the dancing, drinks and music they were carefully briefed about the so-called facts of the case.

Interesting that some of the potentially incriminating pictures taken at the private party managed to find the Ambassador was probably hoping to minimize the impact the trial would have on the streets of Pakistan proving that, for the years she has been holed up and barricaded behind concrete bunkers and barbed wire, she has learned nothing about this great country of Pakistan or its people.

One astute Pakistani columnist wrote about her: “The respected lady seems to have forgotten the words of her own country’s 16th president Abraham Lincoln (1809-1865): “You can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time”.

And the people of Pakistan proved they are nobody’s fool and responded to the guilty verdict in New York in an appropriate way.

When injustice is the law it is the duty of everyone to rise up and challenge that injustice in any way possible.

The response – so far – has been restrained and measured but it is just the start. A sentence has yet to be delivered by Judge Richard Berman in May.

Of course there has been a great deal of finger pointing and blame towards the jury in New York who found Dr Aafia guilty of attempted murder.

Observers asked how they could ignore the science and the irrefutable facts … there was absolutely no evidence linking Dr Aafia to the gun, no bullets, no residue from firing it.

But I really don’t think we can blame the jurors for the verdict – you see the jury simply could not handle the truth. Had they taken the logical route and gone for the science and the hard, cold, clinical facts it would have meant two things. It would have meant around eight US soldiers took the oath and lied in court to save their own skins and careers or it would have meant that Dr Aafia Siddiqui was telling the truth.

And, as I said before, the jury couldn’t handle the truth. Because that would have meant that the defendant really had been kidnapped, abused, tortured and held in dark, secret prisons by the US before being shot and put on a rendition flight to New York. It would have meant that her three children – two of them US citizens – would also have been kidnapped, abused and tortured by the US.

They say ignorance is bliss and this jury so desperately wanted not to believe that the US could have had a hand in the kidnapping of a five-month -old baby boy, a five-year-old girl and her seven-year-old brother.

They couldn’t handle the truth … it is as simple as that.

Well I, and many others across the world like me, can’t handle any more lies. America’s reputation is lying in the lowest gutters in Pakistan at the moment and it can’t sink any lower.

The trust has gone, there is only a burning hatred and resentment towards a superpower which sends unmanned drones into villages to slaughter innocents.

It is fair to say that America’s goodwill and credibility is all but washed up with most honest, decent citizens of Pakistan.

And I think even Her Excellency Anne Patterson recognizes that fact which is why she is now keeping her mouth shut.

If she has any integrity and any self respect left she should stand before the Pakistan people and ask for their forgiveness for the drone murders, the extra judicial killings, the black operations, the kidnapping, torture and rendition of its citizens, the water-boarding, the bribery, the corruption and, not least of all, the injustice handed out to Dr Aafia Siddiqui and her family.

She should then pick up the phone to the US President and tell him to release Aafia and return Pakistan’s most loved, respected and famous daughter and reunite her with the two children who are still missing.

Then she should re-read her letter of August 16, 2008 and write another … one of resignation.

Yvonne Ridley is a patron of Cageprisoners which first brought the plight of Dr Aafia Siddiqui to the world’s attention shortly after her kidnap in March 2003. The award-winning, investigative journalist also co-produced the documentary In Search of Prisoner 650 with film-maker Hassan al Banna Ghani which concluded that the Grey Lady of Bagram was Dr Aafia Siddiqui. Read other articles by Yvonne.

The “Convention for the Punishment and Prevention of the Crime of Genocide” stresses the prevention of genocide more than prescribing its exact manner of punishment. Genocide does not have to be committed for the Convention to have effect. By defining “genocide” it seeks to avert agendas which will confirm the crime. Physical manifestations of genocide are preceded by psychological preparation and the resulting psychological damage to entire victim groups. There is no way not to apply this awareness to current pressures on Islamic communities in North America, so this is an obvious and rather late notation of a genocide warning for Islamic peoples in the U.S. (see also Canada), late, in that one could sense the program over twenty years ago without knowing the scope of its intentions. The threat of whole or partial destruction of this religious group is exacerbated by Israel’s treatment of the Palestinian people, bombing of civilian Lebanon, invasion of Gaza, which placed essentially Islamic civilian populations without human value, in a manner politically acceptable to U.S. and Canadian governments.

The degrading treatment meted out to prisoners of the United States-led “war on terror” over seven years has yet to be subject to proper legal scrutiny and accountability. But the responsibility is Europe’s too, say Jan Egeland & Mariano Aguirre.

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In the very heart of the western world, Europe’s major ally has tortured prisoners to death – in an operation that we Europeans too were involved in. The fourteen “techniques” authorised by the George W Bush administration include semi-drowning (“waterboarding’), confinement in cramped and dark boxes, psychological torture and deprivation of sleep for up to eleven days and nights (see Mark Danner, US Torture: Voices from the Black Sites” [New York Review of Books, 9 April & 30 April 2009]).

An undefined number of prisoners have died or committed suicide as a result of mistreatment in interrogation chambers run by the United States and its allies (the last one was a Yemeni in Guantánamo). It may be recalled that Japanese military jailors who employed these techniques during the second world war were adjudged war criminals by the US’s own military-legal experts.

This, to emphasise the point, is not about the despicable actions of some far-away dictator, nor the atrocities committed by Nazis and communists in Europe in the years of totalitarianism and genocide. No, these acts were part of a larger operation involving our own western, liberal democracies. Europeans were there – with troops, intelligence, logistics and funding – taking part in the “war on terror” that formed the backdrop to these war crimes. After the US secret services had been authorised to mistreat prisoners held in American custody, the CIA was allowed to undertake its “extraordinary renditions”: more than 1,000 flights, often with unnamed prisoners (“unlawful combatants”) in a wide arc across European airspace – from Norway to Romania. Several countries (including Jordan and, again, Romania) granted permission for these prisoners to be interrogated and mistreated in local, US-administered prison camps.

In 2007, a majority of elected representative in the European parliament accused the governments of Europe of having concealed the details of what had happened in these cases. In fact, several countries did more than clandestinely transport and keep prisoners; they also delivered some of their own prisoners into the hands of the CIA. The transfer by the Swedish police in December 2001 of two Egyptian nationals, Ahmed Agiza and Mohammed El Zary – who later vanished into Egypt’s prison-camp system where torture flourishes – is but one example. Reports from both the European parliament and the Council of Europe have found that Europeans have accepted the perpetration of severe abuses in our own backyards that we were and are quick to condemn anywhere else.

When defenceless prisoners – some of them hardcore terrorists, others quite innocent men – were being beaten and humiliated by United States soldiers at Bagram air- base in Kabul, Europeans were close by: every day, our military and civilian forces in Afghanistan would drive past.

When the inner circles around President Bush were planning the torture – how to legitimise, explain and implement it in a network of prisons (some secret, others not) in Europe, the middle east and elsewhere – Europeans remained silent and loyal contributors to the “war against terror” in Afghanistan.

When clever American legal experts were arguing that the principles of international humanitarian law – the Geneva conventions, United Nations conventions, and of habeas corpus –were not applicable in this case of “our battle” against “our enemies”, Europe’s own parliamentarians and NGOS were urging international legal action against some leaders in the global south on the grounds that they had broken the very same principles.

The dark side

How could it be that these years of torture could unfold under Europeans’ very noses, in flagrant contradiction of our national constitutions, our penal codes, our international legal commitments – all without hearings being organised and investigative commissions appointed? Where were our legal experts, our auditors and our journalists? And where were we, the researchers and commentators who have written this? With the exception of rare voices in a few media and human-rights organisations, and a couple of politicians that denounced what had happened, Europe kept silent.

There are no excuses. What was being conceived, planned and perpetrated was hardly a secret, even before the New Yorker and other media published detailed descriptions of these war crimes and the deceit involved (see, for example, Jane Mayer, Outsourcing torture“, New Yorker, 14 February 2005), .After all, only days after the terrorist attacks of 11 September 2001, Dick Cheney admitted that the US chief executive was willing to make the “war against terror” an ugly, dirty affair: in a primetime national broadcast, the US vice-president announced that the secret services would be authorised to go over to the “dark side” (see Jane Mayer, The Dark Side [Vintage/Anchor, 2009]).

Such attitudes began around the same time to infect popular and even intellectual culture. The US television industry broadcast (from November 2001) the well-engineered TV drama series 24, about a federal agent who could not always afford to play by the rules. In episode after episode, the popular series indulged the lie that the torture of suspects was necessary in order to save the lives of innocents. The academic and pundit Michael Ignatieff– then director of the Carr Centre for Human Rights Policy at Harvard University, now the head of Canada’s main opposition party and the country’s likely next prime minister – was only the most high-profile of several intellectual who began to argue that torture is terrible but could in some circumstances be morally and politically justified (see Mariano Aguirre, “Exporting democracy, revising torture: the complex missions of Michael Ignatieff“, 15 July 2005).

So it was that the Bush-Cheney cabal could demolish the legacy of George Washington and Abraham Lincoln. The United States’s first president banned all maltreatment of English prisoners during the during the war of independence (1775-83), forbidding his troops to “imitate the brutality of the British”. Its sixteenth president followed the same principle during the American civil war (1861-65). Both respected here the US’s declaration of independence (1776), based as it was and is on the prohibition of abuse of power, arbitrary arrest and torture.

The next step

Many political, military and administrative leaders were involved in the planning and execution of the “war on terror”; none has had to face legal prosecution for what went on in Guantánamo, Abu Ghraib, Bagram and other sites of documented torture. Almost without exception, it is low-level operatives who have faced prosecution, even though their crimes were committed under a system that was organised in and controlled from the topmost echelons of power in the White House, the CIA and the Pentagon (see Philip Gourevitch & Errol Morris, The Ballad of Abu Ghraib [Penguin, 2008]).

President Barack Obama – whose election by US citizens in 2008 is a turning-pointin this story – declared his intention to close for ever this dark chapter in the history of the United States. For that to happen, he must ensure that the legal process focuses on those who bear political and administrative responsibility. Chile and Argentina are among the countries which investigated and prosecuted those who had ordered torture – so why not the United States? In addition, it is clear that the Guantánamo prison-camp must be shut down; but military tribunals that fail to comply with international standards of jurisprudence should also be closed.

The first decade of the 21st century has witnessed the abuse and neglect of the highest principles of leadership nurtured by western civilisation over centuries. In this light, it is wrong to see the actions of Bush, Cheney, Donald Rumsfeld and their coterie in isolation (see Philippe Sands, Lawless World: Making and Breaking Global Rules [ Penguin, 2006]). For this is also a tale of colossal hypocrisy and worse on the part of Europe, in accepting and being complicit in depredations that violate its own deepest values.

The experience was allowed to unfold year by grim year. During this long period, the European allies of the US – aware of the absence of legal protection for those nameless prisoners being transported for interrogation and torture at destinations known and unknown – appear to have done very little. Why?

What will be the next steps in bringing to justice those responsible? Thomas Hammarberg, commissioner for human rights at the Council of Europe, has called on the council’s forty-seven member-states to provide the complete facts on what actually took place from 2001 to 2008, so that the guilty may be held to account. It cannot happen soon enough. For until it does, the enormous damage Europe has inflicted in these terrible years – not least on itself – can never be repaired.

WASHINGTON – A federal judge ruled on Thursday that some prisoners held by the United States military in Afghanistan have a right to challenge their imprisonment, dealing a blow to government efforts to detain terrorism suspects for extended periods without court oversight.

Attiqullah 10, son of Hafizullah Shahbaz Khiel, an Afghan detainee shows documents proclaiming Hafizullah’s innocence during an interview with Associated Press at his uncle’s house on the outskirts of Kabul,Afghanistan, Tuesday, Jan 20, 2009. He is being held at Bagram Air Base.(AP Photo/Rafiq Maqbool)

In a 53-page ruling that rejected a claim of unfettered executive power advanced by both the Bush and Obama administrations, United States District Judge John D. Bates said that three detainees at the United States’ Bagram Air Base had the same legal rights that the Supreme Court last year granted to prisoners held at the American naval base in Guantánamo Bay, Cuba.The three detainees – two Yemenis and a Tunisian – say that they were captured outside Afghanistan and taken to Bagram, and that they have been imprisoned for more than six years without trials. Arguing that they were not enemy combatants, the detainees want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

The importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has increased under the Obama administration, which prohibited the Central Intelligence Agency from using its secret prisons for long-term detention and ordered the military prison at Guantánamo closed within a year. The administration had sought to preserve Bagram as a haven where it could detain terrorism suspects beyond the reach of American courts, telling Judge Bates in February that it agreed with the Bush administration’s view that courts had no jurisdiction over detainees there.

Judge Bates, who was appointed by President George W. Bush in 2001, was not persuaded. He said transferring captured terrorism suspects to the prison inside Afghanistan and claiming they were beyond the jurisdiction of American courts “resurrects the same specter of limitless executive power the Supreme Court sought to guard against” in its 2008 ruling that Guantánamo prisoners have a right to habeas corpus.

Dean Boyd, a Justice Department spokesman, said that the administration was reviewing the decision and that it had made no decision about whether to appeal.

Judge Bates emphasized that his ruling was “quite narrow.” He said that it did not apply to prisoners captured on the battlefield in Afghanistan, and that a determination of whether prisoners might challenge their detention in court would depend on a case-by-case analysis of factors like their citizenship and location of capture.

“It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war,” the judge wrote. “It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”

Moreover, the judge has put off ruling that a fourth prisoner – also captured outside Afghanistan, but holding Afghan citizenship – had a right to challenge his detention. He said any order to release the detainee could lead to frictions with the Afghan government, and asked for additional briefings on that case.

The United States is holding about 600 people at Bagram without charges and in spartan conditions. United States officials have never provided a full accounting of the prison population, but an American government official, speaking on condition of anonymity because it is against policy to discuss details of the Bagram prison, said that fewer than a dozen detainees fell into the category affected by the ruling – non-Afghans captured beyond Afghan borders.

Judge Bates has been involved in several high-profile executive power cases. In 2002, he sided with the Bush administration in a lawsuit over whether Vice President Dick Cheney’s energy task force records were required to be disclosed. But in 2008, he sided with Congress in an executive-privilege dispute over whether top aides to Mr. Bush were immune from subpoenas related to the firing of federal prosecutors.

David Rivkin, an associate White House counsel in the administration of the first President Bush, predicted that Judge Bates’s ruling would be overturned on appeal. He warned that the ruling “gravely undermined” the country’s “ability to detain enemy combatants for the duration of hostilities worldwide.”

But Tina Foster, the executive director of the International Justice Network, which is representing the four Bagram detainees, praised Judge Bates’s decision as “a very good day for the Constitution and the rule of law.”

Ms. Foster said that the Bagram ruling meant that changes to the Bush detention policies would go beyond merely closing Guantánamo and extend “to any place where the United States seeks to hold individuals in a legal black hole.”

The power of federal judges to review decisions by the executive branch to imprison a terrorism suspect was among the most contentious legal issues that arose after the 2001 terrorist attacks. The Bush administration began a policy of holding prisoners indefinitely and without trials, arguing that federal judges had no authority to second-guess its decisions about whom to name an “enemy combatant.”

But human-rights lawyers challenged those policies, winning Supreme Court decisions in 2004, 2006 and 2008 that gradually expanded the reach of the American legal system over detainees.

After taking office, Mr. Obama ordered a review of the evidence against each of the roughly 240 prisoners at Guantánamo as a first step toward closing the prison within a year.

He did not extend the steps he was taking to resolve the fate of the Guantánamo prisoners to those held at Bagram, although a comprehensive review of detainee policies is due to be completed in July. Ms. Foster said that the Bagram case may force the administration to speed up its decisions.